Citation Nr: 1315725 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 10-37 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a left knee disorder. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from June 1949 to November 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2012, the Veteran testified via videoconference before the undersigned. See 38 U.S.C.A. § 7107(c), (e)(2) (West 2002). A transcript of that hearing was associated with the claims file. Thereafter, in July 2012, the undersigned remanded the Veteran's left knee claim for additional development. While the undersigned also remanded a claim for service connection for a left ankle disorder, that issue was subsequently granted in a March 2013 rating decision. Significantly, the Veteran has not expressed disagreement with the effective date of service connection or the initial rating assigned for his left ankle disorder. Accordingly, the Board considers the Veteran's left ankle claim to be fully resolved and, thus, outside the scope of its appellate jurisdiction. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of the claim concerning 'downstream' issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A left knee disorder, diagnosed as osteoarthritis with arthralgia, has been shown to be etiologically related to a series of in-service ski injuries that the Veteran incurred while stationed in Alaska. CONCLUSION OF LAW Service connection for a left knee disorder, diagnosed as osteoarthritis with arthralgia, is warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, the Board is granting service connection for the Veteran's left knee disorder, diagnosed as osteoarthritis with arthralgia. As this represents a complete award of the benefits sought on appeal, further consideration of VA's duties to notify and assist is unnecessary. II. Service Connection The Veteran, in written statements and testimony before the Board, contends that he developed chronic left knee pain and related symptoms while on active duty in Alaska, where he was involved in a series of ski accidents. See June 2012 Hearing Tr. at 4. He reports that these accidents were severe enough to warrant inpatient treatment at a military hospital, where treating providers informed him that he "had a chipped bone in [his left knee]." Id. at 4-5. Significantly, the Veteran attested to essentially the same in-service knee injuries during a prior Board hearing, which addressed a claim for service connection for a right knee disorder (degenerative posttraumatic arthritis) that was later granted. See December 2009 Hearing Tr. at 3. Therefore, in light of the Veteran's assertions of a shared etiology between that service-connected disability and the left knee issue now on appeal, the Board must consider whether service connection is warranted both on a secondary and direct basis. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). At the outset of this discussion, the Board acknowledges that the Veteran's service treatment records remain outstanding. The RO previously requested such records from the National Personnel Records Center, but was advised in April 2007 that they were unavailable and presumed destroyed in a 1973 fire. Thereafter, in accordance with the Board's July 2012 Remand, the agency of original jurisdiction (AOJ) attempted to obtain copies of the Veteran's in-service hospitalization records, but was again unsuccessful. Following numerous attempts to reconstruct those service records from multiple sources, including the Veteran himself, the AOJ issued a February 2013 formal finding as to their unavailability. Accordingly, the Board finds that further efforts to obtain those records would be futile and are therefore unwarranted. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (stating that VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim); see also Hayre v. West, 188 F.3d 1327, 1331-1332 (Fed. Cir. 1999) (finding that VA's efforts to obtain Federal records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile). Given the unavailability of the Veteran's service treatment records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Significantly, however, there is no presumption, either in favor of the Veteran or against VA, arising from missing service records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (declining to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). Moreover, the Board's obligation to carefully address and weigh all potentially favorable evidence does not lower the overall legal standard for proving a claim for service connection. See Russo v. Brown, 9 Vet. App. 46 (1996). Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, which manifest to a compensable degree within the initial post-service year. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Even without such manifestation, however, service connection may still be established if all of the evidence, including that pertinent to service, reveals that a current disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may also be established for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In such instance, service connection shall be granted as secondary to the disability for which VA benefits were initially awarded. Id.; see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Compensation may also be obtained for the aggravation of a nonservice-connected condition by a service-connected disability. See 38 C.F.R. § 3.310(a) (2012); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that to establish service connection on a direct basis, there generally must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). To prevail under a secondary theory of service connection, there must be probative evidence, generally medical in nature, which establishes (1) current disability; (2) service-connected disability; and (3) a connection between the two. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In applying the above to the specific facts presented, the Board must assess the weight of all evidence, both medical and lay, to determine its probative value. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight need not be accorded to all evidence contained in the record as each such item does not carry the same probative value. Lay evidence is considered competent if derived from a source that has personal knowledge of facts or circumstances and conveys matters that can be described through physical observation. 38 C.F.R. § 3.159(a). Thus, a Veteran is competent to report on his current and historic symptomatology in a claim for service connection. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Significantly, for purposes of this appeal, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has broadened the applicability of lay evidence by holding that such evidence can be sufficient, in certain instances, to prove nexus and that a "valid medical opinion" is not absolutely required to substantiate this element of the Hickson test. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Conversely, the Federal Circuit has narrowed the scope of cases in which lay or other competent evidence may establish the second and third prongs of Hickson under a theory of continuity of symptomatology. See 38 C.F.R. § 3.303(b) (2012). Indeed, the Federal Circuit has clarified that this theory only applies to diseases recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Such diseases include the arthritic disorder at issue in this appeal. Accordingly, the Board will consider whether to grant his claim based on continuity of symptomatology as well as the traditional Hickson and Wallin elements outlined above. See 38 C.F.R. § 3.303(b); Hickson, 12 Vet. App. at 253; Wallin, 11 Vet. App. at 512. The Board finds that the Veteran has met the threshold requirements of Hickson and Wallin by showing that he has a current diagnosis of left knee osteoarthritis with arthralgia. Indeed, such a diagnosis is evident from the VA outpatient treatment records, examination reports, and medical opinions that have been provided throughout this appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). Conversely, there have been no competent findings of other left knee disorders. Accordingly, the Board will confine its analysis to whether service connection is warranted for left knee osteoarthritis with arthralgia under Hickson or Wallin, or on the basis of continuity of symptomatology. Turning to the second prong of Hickson, the Board recognizes that the Veteran's reports of active-duty knee injuries have not been corroborated by any contemporaneous medical evidence. Nevertheless, the lack of such evidence does not automatically invalidate his account of in-service incurrence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Indeed, that is especially true, where, as here, the Veteran's service treatment records are unavailable. As noted previously, the Board in such instances must duly consider the benefit of the doubt rule when evaluating the evidence that does exist in support of the appeal. See Cuevas, 3 Vet. App. at 548; O'Hare, 1 Vet. App. at 367. Resolving reasonable doubt in the Veteran's favor, the Board finds that his account of in-service bilateral knee injuries is both competent and credible. Indeed, the Veteran's status as a layman does not diminish his competence to report injuries to his knees incurred while skiing as such trauma lies within the realm of his personal experience. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the internal consistency of the Veteran's written statements and testimony in this regard enhances their overall credibility. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Furthermore, the Board considers it significant that the Veteran's initial reports of in-service knee injuries, rendered in the course of seeking medical treatment, are substantively unaltered from the assertions that he has made in the pursuit of VA benefits. Cf. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care). In any event, the Board observes that the Veteran's account of in-service incurrence has been effectively conceded by the October 2011 VA adjudicators who granted his right knee claim. Accordingly, the Board accepts the findings of those prior adjudicators with respect to the multiple knees injuries that the Veteran sustained during his period of active service. This supports his claim for service connection by satisfying the second element of Hickson. See Hickson, 12 Vet. App. at 253. Moreover, the Board finds that the second element of Wallin has also been met by virtue of the Veteran's award of service connection for the right knee disorder, which he now claims is etiologically related to his left knee osteoarthritis. See Wallin, 11 Vet. App. at 512. Accordingly, the remaining questions before the Board are whether a direct link has been established between Veteran's left knee osteoarthritis with arthralgia and his active service, either through a positive nexus opinion or continuity of symptomatology, and whether that current disorder is etiologically related to one or more service-connected disabilities. See Hickson and Wallin, supra; 38 C.F.R. § 3.303(b). Prior attempts to resolve these questions have met with insufficient medical opinions, the first of which was obtained in February 2012. At that time, an examining VA clinician determined that the Veteran met the diagnostic criteria for mild left knee arthritis. However, while not disputing his account of in-service injuries, that examiner nevertheless determined that such decades-old trauma was less likely than not responsible for the Veteran's current left knee "arthritic changes." Instead, that examiner attributed such degenerative manifestations to the intervening years of "normal wear and tear" on the Veteran's left knee joint. Significantly, however, the February 2012 examiner did not address whether an etiological relationship existed between the Veteran's left knee disorder and the posttraumatic right knee arthritis for which service connection had been recently established. Tellingly, the Veteran's right knee award had been predicated on the positive nexus findings of an April 2011 VA examiner, who had addressed the Veteran's current right knee pathology in the context of his reported history of "multiple [in-service] twisting injuries" to the knees incurred while skiing. The April 2011 examiner had also focused on the Veteran's complaints of chronic knee pain and swelling emanating from service. In contrast with the above VA examiner, the clinician who examined the Veteran in February 2012 essentially ignored his lay assertions and concentrated instead on the clinical evidence of record, notwithstanding the unavailability of the Veteran's service treatment records through no fault of his own. After reviewing the February 2012 VA examination report, the Board determined that it was inconsistent with the other evidence of record, most significantly the favorable findings of the April 2011 VA right knee examiner. Accordingly, the Board concluded that the February 2012 report was inadequate for rating purposes and, thus, remanded the Veteran's left knee claim for a new VA examination and etiological opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311(2007) (noting that once VA undertakes efforts to furnish an examination or etiological opinion, an adequate one must be provided). In requesting a follow-up VA examination and opinion, the Board expressly directed the examining clinician to carefully assess the Veteran's reported in-service medical history, as well as the findings of the April 2011 right knee examiner. Nevertheless, such material evidence appears to have been again overlooked on remand. Indeed, the ensuing March 2013 VA examination report, while prepared by a clinician who had not previously examined the Veteran, essentially encompasses the same conclusions that were reached by the February 2012 examiner. Indeed, the subsequent examination report uses the same terminology the prior examiner used in attributing the Veteran's current left knee osteoarthritis to the "normal wear and tear" of the aging process. Moreover, that March 2013 examination report continues to rely on the absence of any objective evidence of in-service left knee fracture, notwithstanding the unavailability of the Veteran's service treatment records, and does not address his competent and credible lay assertions of active-duty ski injuries. Nor does that examination report address the Veteran's account of continuous left knee problems dating back to those in-service injuries. By disregarding the favorable evidence provided by the Veteran and the April 2011 right knee examiner, the March 2013 examination report is no more adequate for rating purposes than are the findings of the February 2012 VA clinician. See Barr, 21 Vet. App. at 311. Under such circumstances, another remand ordinarily would be needed to ensure compliance with the Board's previous directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting, inter alia, that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). However, in this case, such additional development would only result in further delay with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5- 04, 69 Fed. Reg. 59,989 (2004). That is because, notwithstanding the unfavorable medical opinions obtained in connection with the Veteran's left knee claim, the other evidence of record is sufficient to grant the benefits sought on appeal. In arriving at this determination, the Board is guided by the Veteran's own account of recurrent left knee symptoms, which have persisted since his active duty despite an apparent lack of intercurrent trauma. Just as the Veteran is capable of reporting a history of in-service knee injuries incurred while skiing, he is competent to attest to a lack of such trauma since leaving active duty. 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 309. The Veteran is also competent to describe the recurrent presence of left knee pain and related symptoms, which are capable of lay observation. See Davidson, 581 F.3d at 1318. Moreover, the Board considers the Veteran's assertions to be credible in the absence of probative evidence to the contrary. See Caluza, 7 Vet. App. at 511 (1995). Having thus determined that the Veteran's account of recurrent left knee problems is both competent and credible, the Board finds such lay evidence to be sufficient, given the particular facts of this case, to establish a direct link between his current disability and active service. Indeed, the Veteran's account, in tandem with the other aforementioned evidence of record, meets the nexus criteria outlined in 38 C.F.R. § 3.303(d) as it indicates that the chronic left knee pain and related symptoms underlying his current osteoarthritis diagnosis flow directly from the active-duty trauma he incurred while skiing in Alaska. The Board recognizes that such an etiological relationship has not been demonstrated through the foregoing VA examination reports, nor otherwise shown through competent medical opinion evidence. As discussed, however, the absence of a "valid medical opinion" is not an absolute bar to service connection, particularly where, as here, the lay evidence of record is sufficient to satisfy the third and final Hickson prong. Davidson, 581 F.3d at 1316. Similarly, the lack of probative medical opinion evidence is not fatal to a claim involving a disease expressly recognized as chronic under 38 C.F.R. § 3.309(a), which is manifested by symptoms that have persisted continuously since active service. 38 C.F.R. § 3.303(b); Walker, supra. Such is the case with respect to the Veteran's left knee osteoarthritis claim. Indeed, his uncontroverted assertions of ongoing left knee pain and related problems are sufficient to establish a continuity of symptomatology dating back to service, thereby obviating the need for a medical opinion in support of his claim. In sum, the Board finds that the Veteran has met the requirements for direct service connection pursuant to the Hickson, as well as the theory of continuity of symptomatology that remains in effect under Walker. As such, the Board need not further consider whether secondary service connection is also warranted since the benefits arising from that theory of entitlement are equivalent to those that are available on a direct basis. See Wallin, supra. In reaching this favorable conclusion, the Board has afforded careful consideration to the "benefit of the doubt" rule. As explained previously, that provision carries heightened applicability in cases, such as this, in which the Veteran's service treatment records are missing. See, e.g., Cuevas, 3 Vet. App. at 548. Accordingly, the Board resolves all reasonable remaining doubt in the Veteran's favor and hereby grants his left knee claim. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2012). ORDER Entitlement to service connection for a left knee disorder, diagnosed as osteoarthritis with arthralgia, is granted. _________________________________________________ S. HENEKS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs